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All content by Kyle E. Mitchell, who is not your lawyer.

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Deprecation Notice: MIT and BSDit’s time to retire thirty-year-old academic licenses

MIT and BSD open source licenses are well known, popular, and legally deprecated. They served long and well, but they’re older than many open source software developers, and haven’t been maintained.

With licenses like Blue Oak available, it’s time open source upgraded from academic forms of the ’80s. There are good social, practical, and especially legal reasons to do so.

MIT and BSD don’t handle patents.

Both copyrights and patents apply to software, but the word “patent” does not appear in MIT or BSD terms. MIT and Cal’s tech transfer offices say they never intended to license any patents. There is some argument that other words, like “use”, imply permission under patents, anyway. And there is some law that may or may not imply patent permission, when giving someone a copy of software. But a license can avoid all that uncertainty by spelling out plainly that it covers all relevant intellectual property. MIT and BSD don’t.

Licenses like Apache 2.0 show how lawyers do this in legal terms for private deals every day. Blue Oak shows the same job done in everyday English, without long lists, run-on sentences, or complex scope rules.

Patents are a problem that MIT and BSD do not solve. Open source developers have better options, at no real cost, with significant additional benefits. Even developers and companies that despise software patents, and will never seek them, benefit by choosing modern terms. It’s one thing to know that you won’t seek or enforce any patents. It’s quite another to have legal assurance from others that they, or their successors, won’t lay a patent trap.

MIT and BSD are hard to read.

When you tell a lawyer to keep it short, their first draft will cheat by drawing heavily on background law and legal vocabulary. They’ll invoke complex concepts, rather than identifying or explaining them, often with cues non-lawyers won’t catch. It’s an extra, laborious, intellectually grueling step to translate the whole legal message into everyday words and phrases. Blue Oak made that extra investment. MIT and Cal did not.

As a result, the shortness of MIT and BSD are reassuring only until you actually try to understand them, and find you need a decoder ring. The terms are actually dangerous if you read them without knowing you need that decoder ring, believing you see the whole picture, which often turns out to be just the picture you wanted to see.

My most popular piece of writing to date is thousands of words only partly explaining the 171 words of The MIT License. Having commentary to guide you through a dense license is better than not having it. But it’s a distant second-best to having a license that’s readable and actionable on its own, like Blue Oak.

Blue Oak starts with a summary of its purpose, a built-in TL;DR. You should read the whole license, because it’s easy and it matters. Blue Oak wants to be understood.

It’s not clear what MIT and BSD are, legally.

We call terms for open source software “licenses”. But there’s a long-running debate in open source theory about whether they’re just licenses, licenses and contracts, both, or potentially both. I call the question theoretical, because pragmatically, dealing with that kind of uncertainty is always a distant second-best to avoiding it entirely. For open source, the keys are permission given and the rules that come along with it. Legal characterization is an implementation detail, and implementation details shouldn’t constrain high-level goals.

Licenses like AFL make clear that they can be contracts. Other forms, and now Blue Oak, make clear their terms have to be agreed, and not just received. License or contract? The answer is both. And that is a very good thing. Eliminating that question clarifies many other issues.

Another long-running debate in open source licensing theory concerns revocation. When someone releases code under an open source license for nothing, can they take it back? Other popular licenses dating back decades, like GPLv2 and v3, say specifically that developers cannot revoke their licenses, but also insist that they are just licenses, and not contracts. That’s still a head-scratcher—fortunately not a particularly threatening one—because the legal rules about revocation and relying on others’ words come from contract law, which covers agreements, not intellectual property law, which covers licenses. Blue Oak says it’s both a license and an agreement, and also that contributors can’t take their licenses back. The title of that section, Reliability, is just the point.

We can say much the same about warranty disclaimers and damages exclusions, the parts of licenses, often needlessly set in illegible ALL CAPS, that protect open source contributors from legal liability. How do those disclaimers and exclusions work? Under contract law, we have a pretty good idea. Under intellectual property law alone, we don’t really know. The specific terms about warranties that we see in nearly all open source licenses—“as is”, “implied warranties”—actually come from statutes about contracts, not copyright or patent statutes.

MIT and BSD attribution is a land mine.

With very rare exception, even permissively licensed open source software under terms like MIT and BSD comes with rules to follow. By far the most common rule is attribution, which requires those who make copies of the software, in source or compiled form, to include copies of terms, copyright notices, and other information about who licenses the software, and how.

A byproduct of those notices is credit. Open source developers who want credit should get it. Traditional attribution rules, like those in MIT and BSD terms, arguably don’t go far enough, especially in the software-as-a-service era. But many companies don’t even do what the old licenses say they have to do, especially for client-side JavaScript libraries.

The contract-or-license question muddies the waters here again. But most lawyers I’ve heard from believe that violating the attribution rule of an open source license kills your license. In other words, if you use someone’s software under MIT or BSD and share a copy without including their copyright notices and license terms, they can sue you for infringement, since the open source license no longer applies to you.

The same risk applies to copyleft rules under licenses like GPLv2. That makes it possible for money-minded developers, or those who acquire their rights, to sue unknowning violators for money, even when the point was originally to get patches back, not cash. That has led to coordinated efforts like Principles for Community-Oriented Enforcement and the GPL Cooperation Commitment. The latter essentially backports a fix from GPLv3 to GPLv2: Pave a path to forgiveness in the license, to ensure companies who break the rule have a chance to make good, and opportunistic plaintiffs can’t use it to spring a trap.

Blue Oak applies the same fix to its attribution rule. If someone fails to provide a copy of the license with a copy of the software, you can call them out in writing. If they do what they should have done in thirty days’ time, they’re back on track. If they refuse, then poof goes their license.

MIT and BSD breed confusion.

Nobody knows how many variants of MIT and BSD terms there are. I see a new one twice a year or so. In that sense, MIT and BSD have mutated over the years, but not evolved. Aimless diversification just makes identification and compliance harder.

Neither, apparently, do we really know how to fill out the standardized MIT and BSD templates we have. Some projects continue for years, attracting scores of meaningful contributors, with only the long-departed, initial contributor’s name in the license. Some projects replace the name with “project contributors”, rendering the line meaningless. Some projects institute chores for adding names to the copyright line and bumping the year each January. We treat projects doing all of those things the same. Apparently, none of that is essential.

Blue Oak follows modern licenses like the GPLs, Apache 2.0, Mozilla Public License, and Eclipse Public License in offering a fixed form. All you have to do is copy the terms into your project and reference it in any header comments, metadata, or documentation about licensing. There’s no copyright line or other template field to fill out or update. There’s no temptation to munge the terms, intentionally or accidentally.

Authorship information for open source software is nearly always available online. Notice rules designed for projects from single institutions, distributed on magnetic tape by mail, back in the ’80s, don’t make sense in 2019. Hyperlinks to terms should count. Under Blue Oak, they do.

MIT and BSD don’t expect more contributors.

MIT and BSD terms include a space for a single copyright notice, because they were written for releases from academic institutions that own all the copyrights in their employees’ work. What about other contributors to the project? They hold copyright in their contributions.

Modern permissive licenses, like Apache 2.0, expect contributions from others, and express rules and expectations about how they’ll be licensed. Those rules are some of the most complex in the Apache license. In part to be double sure, in part because it’s not clear if or how the contribution-licensing conditions of Apache 2.0 work, the Apache Foundation also publishes and uses standardized contributor license agreements.

Blue Oak takes the next logical step. The license speaks from all contributors to the project, not just the first. It clearly expresses the expectation that all contributors will make their work available on the same terms. It’s still worth getting a record of contributors’ intent to license on Blue Oak terms. But Blue Oak takes the correct approach, documenting that expectation to build a case that it goes without saying, rather than trying to write it into rules folks may not read.

Blue Oak expects more contributors. MIT and BSD expect everyone to work for one university.

Use Blue Oak for new work.

I had a hand in drafting the Blue Oak license, and I’m executive director of Blue Oak Council, the license steward. But I was not alone. Several lawyers came together, in GitHub private repos, to do what we couldn’t have done apart.

Blue Oak is the best permissive open source software license we know how to write. We didn’t originally set out to write a license, but no existing form offered all the features we were looking for.

A whole lot of great software is out there under MIT and BSD terms. Those licenses will always be with us. As licensing lawyers, we know from firsthand experience how difficult relicensing multi-contributor projects can be.

But for new work, there’s a clear choice. Blue Oak is a good permissive license in 2019. Old, unpatched MIT- and BSD-style terms are not.

Your thoughts and feedback are always welcome by e-mail.

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